The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The workplace injury

On February 17, 2003, the worker was climbing down a bin ladder at work when he slipped. He grabbed on to a rung with his left hand to stop himself from falling and felt a “yank” in his left shoulder and chest. He continued to work and avoid heavy lifting activities although his left shoulder and chest continued to bother him.

The medical treatment

The worker has sought medical treatment and a diagnosis for his ongoing symptoms:

• On March 10, 2004, he saw a family physician who diagnosed him with a muscle strain. He changed this diagnosis to a possible acromioclavicular dislocation on March 31, 2004 and recommended an x-ray.

• An x-ray of the left shoulder taken on March 31, 2004 revealed no significant bone or joint abnormality.

• On April 14, 2004 the family physician thought that the worker’s recovery was satisfactory and that the worker would be able to start work within a week.

• On May 6, 2004 a WCB medical advisor reviewed the x-ray. He thought that the diagnosis was an acromioclavicular injury.

• On May 6, 2004 the family physician changed his diagnosis to tenosynovitis of the long head. He noted popping sounds in the left shoulder.

• On May 17, 2004 the worker saw his family physician again complaining of difficulties coping at work.

• On May 28, 2004 the worker once again saw his family physician who noted decreased range of motion and increased tenderness at the left shoulder point.

• A sonogram done on the left shoulder on June 9, 2004 was considered to be normal with no evidence of a rotator cuff tear. An orthopaedic assessment was recommended.

• On June 14, 2004 the WCB case manager called the worker’s physiotherapist to discuss his progress. The physiotherapist noted that the worker currently had a good range of motion with fairly normal strength. She thought that he could return to work on a gradual basis and avoid lifting, which the worker was willing to do.

• On June 16, 2004 his family physician noted that the worker had gone to work and developed pain on lifting weight. The pain was in the left shoulder girdle as opposed to the shoulder joint.

• The worker was then referred to a sports medicine specialist on July 23, 2004. The examination of the left shoulder revealed full active and passive range of motion and was pain free. There was no atrophy, tenderness or deformity. Shoulder strength was good. Provocative tests for rotator cuff inflammation or impingement were all negative and there were no signs of shoulder instability. Due to the worker’s ongoing shoulder pain and normal ultra-sound findings, an MRI of the shoulder was ordered.

• A WCB medical advisor examined the worker on July 19, 2004. He found no obvious cause for the worker’s ongoing symptoms. He commented that the mechanism of injury could have potentially caused a strain to the pectoralis major muscle, as well as some of the other muscle groups of the shoulder girdle but did not expect a strain type injury to have lasted so long. He did find some evidence of muscle irritability in the rhomboids that could explain the worker’s protracted course of recovery but all in all was at a loss as to a reason for the worker’s symptoms. He agreed that an MRI was appropriate and in the meanwhile recommended restrictions of no lifting greater than 10 pounds with the left arm and no overhead work, including climbing ladders.

• On July 21, 2004 the family physician noted that the worker continued to complain of pain and stiffness in his left shoulder and an inability to tolerate work.

• On September 23, 2004, an MRI of the left shoulder showed no evidence of a labral or rotator cuff tear.

• On October 10, 2004, it was recommended by the sports medicine specialist that the worker commence a graduated return to work program on October 12, 2004, starting at four hours per day and increasing each week until he was back to an 8 hour day. By October 25, 2004, the worker was working eight hours per day but was careful about the type of work tasks he was performing.

• On January 12, 2005 a second family physician found his shoulder range of motion and extension/flexion to be unchanged since July 2004. She considered the worker totally disabled from work because of pain complaints that she diagnosed as chronic pain in his left pectoralis major and rhomboid muscles.

• A further report from the same physician dated March 4, 2005 revealed that the worker’s pain was better controlled but he was still disabled.

• Another report from the family physician noted that the worker continued to complain of shoulder symptoms. This time he described them as “tendons pulled apart”, pinching pain, stabbing pain and crunchiness. The worker was referred to an orthopaedic surgeon.

• The worker was referred once again for physiotherapy. A January 19, 2006 report notes that the worker continued to complain of chronic left shoulder pain with some occasional tingling into his left had. She questioned whether the worker was suffering from a nerve palsy.

• The worker was then referred to an orthopaedic surgeon in 2006. The orthopaedic surgeon found tenderness and active snapping over the superomedial angle of the scapula. However, the worker had full range of motion of the shoulder, good strength and negative impingement signs. A CT scan done on December 22, 2006 ruled out an osteochondroma. The orthopaedic surgeon therefore concluded that the worker’s symptoms were consistent with a soft tissue injury. He therefore recommended a left open superomedial scapular resection.

The attempted returns to work

At the time of his injury the worker was employed in seasonal work that was generally between October and March or April of each year.

• After his accident in 2003, the worker returned to work in October 2003 until March 2004 when he went off on WCB benefits.

• He attempted a return to work on June 10 and 11, 2004 and experienced increased shoulder pain. His employer told him to go home because he was not fit for work and it did not have any light duties available for him, other than office work which he was not qualified to do.

• On October 12, 2004, the worker began a gradual return to work for 4 hours per day for the first week, then 6 hours per day for the next week, and a return to full-time the next week. The worker remained at his full-time duties until his seasonal lay-off in March 2005. The worker testified at the hearing that he missed a fair amount of hours during this time.

• The worker testified that he did not call the employer in October 2005 although that is the period of time it normally re-hires, as he was still feeling pain. He did however call in November 2005 but was told there were no openings.

• At the hearing, the worker testified that he applied for several full-time light duty jobs beginning in January 2006 without success. He did not however feel that he was able to work at all.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that his ongoing left shoulder symptoms are related to his February 2003 workplace accident and that he had a loss of earning capacity related to this accident.

The evidence before us is that the worker injured his left shoulder which has continued to be symptomatic. While the exact diagnosis of the worker’s condition has been difficult to pinpoint, an orthopaedic surgeon has recently determined that it is due to a soft tissue injury in his left shoulder. We accept this medical opinion and we therefore find, based on the continuity of symptoms and the lack of evidence that he has recovered from his injury, that his ongoing left shoulder complaints are related to his February 2003 accident. On this basis we find that the worker is entitled to medical aid benefits beyond May 12, 2005.

That said, the evidence before us is that the worker’s clinical presentation and in particular the range of motion and extension/flexion of his left shoulder has remained consistent. The evidence is also that the worker was able to work at a relatively moderate level of laborious work since his accident with this clinical presentation. While the worker testified that he feels that he is unable to do anything and has pain all of the time, the evidence before us demonstrates that he is capable of working full time at his regular duties. Although we accept that the worker may have missed some work because of his symptoms, we find on a balance of probabilities, that this was due to his pain complaints and self-limitations rather than his compensable injury. This is apparent in his failure to contact his employer in October 2005 because of pain, then calling in November 2005 seeking full time employment. We therefore find that the worker is not entitled to wage loss benefits after May 12, 2005.

To summarize, we find that the worker is entitled to medical aid benefits after May 12, 2005 but not entitled to wage loss benefits after May 12, 2005.